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By Dan Gephart, January 17, 2024
Over the last several years, agencies have paid more particular attention to harassment, including the non-EEO kind. This has led to a greater general awareness of hostile work environment. Unfortunately, while more people are aware of HWE, there are way too many who don’t understand exactly what it is.
Much of the misunderstanding is on the part of employees who define the term “hostile” way too broadly, Ann Modlin wrote late last year. However, those who should know better are not immune to confusion when it comes to recognizing and addressing an actionable hostile work environment.
Most EEO and HR professionals can recognize verbal and physical behavior that is unwelcome, and most can discern if the conduct was based on the employee’s protected status. But confusion rears it head when discussion turns to the third part of the elements of proof – determining if the conduct was sufficiently severe or pervasive to alter the terms, conditions, and privileges of employment.
There is no simple rule or guideline for determining hostile work environment, as it often depends on the unique circumstances of each case. Here are five points to help you make the appropriate determination.
- Remember that it’s severe or pervasive – not and.
- This means a single incident, if severe enough, can create a hostile work environment.
- The EEOC found sufficient evidence to support a finding that a manager came up to the complainant while she was at her workstation, grabbed her around the waist, and kissed her on the neck. Trina C. v. USPS, App. No. 0120142617 (2016).
- A male coworker pushed the complainant’s hair back and stuck his tongue in her ear. Hayes v. USPS, No. 01954703 (1999).
- On the flip side, a single incident that is not severe would not be an HWE. Here’s an example from a Supreme Court case:
An employee met with her male supervisor and another male employee to review the psychological evaluation reports of four job applicants. The report for one of the applicants disclosed that the applicant had once commented to a co-worker, “I hear making love to you is like making love to the Grand Canyon.” The supervisor read the comment aloud, looked at the employee and stated, “I don’t know what that means.” The male employee then said, “Well, I’ll tell you later,” and both men chuckled. The Supreme Court ruled: “Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in employment terms and conditions.” Clark County School District v. Breeden, 532 U.S. 268 (2001).
- However, non-severe conduct could create a hostile work environment if it is frequent or pervasive. Some of the actions in Gillespie v. McHugh, App. No. 0120080758 (2012), are not severe alone, but when viewed together, it’s another story. Over time, the supervisor:
- Told the complaint that she was not an expert on regulatory matters and that the districts didn’t come to her for advice.
- Gave the complainant a lower performance rating than she had received previously, and one lower than all other attorneys in her group.
- Told the complainant she was not qualified to be on the Chief Counsel’s Management Partners’ Group.
- Told the complainant she didn’t know how to brief people.
- Sent an email to a Regulatory Appeals Officer apologizing for inadvertently sending out a draft for others to review, while blaming the complainant for the mistake.
- Chastised the complainant for not volunteering to work on a project.
- Acted in a hostile and demeaning manner towards the complainant during a meeting.
- Accused the complainant of being condescending, rude and in violation of her oversight responsibility.
- Intentionally refused to select the complainant to represent the Office of Counsel at weekly meetings.
- Blocked an on-the-spot award that a district wanted to give the complainant.
- And much more.
On their own, some of the bullets above appear to be standard supervisory actions. And as we know from the numerous emails we’ve received (and the article Deb wrote last year), some overly sensitive employees are confusing basic supervisory functions with harassment.
In Gillespie, however, the pervasiveness of the evidence along with witness statements led to the EEOC overturning its administrative judge’s ruling that sided with the agency.
“It was a very nasty tone,” a co-worker testified about one of the meetings. “That’s what made me feel sick … And since [the complainant] is a good coworker and team player and has always been helpful, I was thinking, well, how can I reiterate to [the supervisor] that [the complainant] did everything she was supposed to do for my team . . . and make sure [the supervisor] understood that.”
In Gillespie, the EEOC not only overturned the AJ’s decision, but it also found the agency liable. While it directed the agency to secure training for the supervisor, the EEOC also strongly recommended discipline.
- When making determinations about a hostile work environment, always consider the following:
- Frequency and duration of conduct
- Vulnerability of the victim
- Makeup of the workforce
- Relative positions of the perpetrator and harassed employee
If you’re looking for more guidance on hostile work environments, join us on Feb. 20 for the two-hour virtual training Navigating Complex Hostile Work Environment Harassment Cases. gephart@feltg.com
Welcome to another year-end News Flash, where we reveal the two most popular FELTG newsletter stories (based on the number of reads and forwards) for each month of 2023. Let’s dive in.
By Dan Gephart, November 13, 2023
I used to be skeptical when people talked about generational differences in the workplace. I thought it was an over-generalization. I’ve since gained an appreciation for the data and how it can improve everything from performance feedback to workplace logistics.
The American workplace is going through a generational shift. Millennials (born 1980-1994) are now the largest generational workgroup, followed closely by Gen X (1965-1979) and Baby Boomers (1946-1964). In the Federal workplace, Gen X still holds an edge, but the percentage of Millennials continues to grow. Understanding the differences between these groups is as important as ever.
Oh, and look out: Gen Z (1995-2009) is expected to make up more than a quarter of the overall workplace within two years.
But that’s not all. An understanding of generational differences is important to address the following workplace situations.
- Remember that “OK, Boomer” slam? Do you still joke about everybody-gets-a-trophy Millennials? Luckily, the rancor of a few years ago has died down. Unfortunately, a lot of inter-generational mistrust continues to exist in the workplace.
- Major workplace change (offices to cubicles, cubicles to open spaces, open spaces to remote work) has often been mired in generational conflict. Understanding generational needs will help your agency in its current transition to a permanent hybrid workforce.
- The Biden Administration continues to stress DEIA (diversity, equity, inclusion, and accessibility). Age and experience are key diversity factors.
- And, finally, there’s the performance As a group, Federal supervisors have gotten better at performance feedback. But too many supervisors still struggle.
There is no one way to provide employee feedback. It depends on the relationship between the employee and the rater, according to FELTG Instructor Susan Schneider. She offered this overview:
- “Generally, Gen Zs prefer feedback delivered in a variety of ways,” Susan said. “Gen Zs, like Boomers, prefer direct and actionable feedback. Ideally, the feedback is tailored to their individual needs.”
- Millennials prefer timely, specific, continuous feedback given in a collaborative and supportive way.
- Gen Xers prefer regular direct and honest feedback. “For both Gen Xers and Gen Zs, keeping their individual needs and goals in mind is the best approach,” she said.
- Boomers are geared to formal feedback sessions like most Federal organizations’ annual or half-yearly sessions. Specific and actionable feedback is ideal.
Those differences are well-researched, with the general conclusion that Millennials need “frequent, VERY frequent, feedback.” Should supervisors really consider a person’s generation before sharing feedback?
“Perhaps, as a start,” Susan said. “Management starts with communication. Well, management IS communication. So, yes, communicate differently if personally and organizationally possible.”
Susan has taken a particular interest in the fast-growing Gen Z.
“Gen Zs flourish in diverse workplaces,” she said. “They are practical, and, of course, digitally fluent. Gen Zs want a culturally competent manager, stability, competitive wages, and mentorship. Their communication style is face-to-face and video chats with friends.
“When I think about our Gen Zs onboarding during COVID, I’m concerned. How can their co-workers, including managers, provide (or simulate) face-to-face communication? I have anecdotal evidence; a mentor/protégée pair told me they met in person outside during COVID.”
Back to my original skepticism of the topic. I asked Susan how she’d respond to someone saying generational differences are over-generalizations or worse stereotypes.
“Generation is one way to understand peoples’ life experiences and what makes each of us who we are,” Susan told me. “Aspects of a person, such as life stage (such as becoming a parent) or military service, first-generation college, living abroad, first language learned, or where we grew up are all within us. Learn about people and accept that human beings are formed by many influences. Respect personal boundaries, and don’t accept your first impression as fact.”
“Diversity of thought is a huge asset for an organization.” Gephart@FELTG.com
OPM Deputy Director Rob Shriver took time to talk with FELTG this month about the proposed rule that could make it very difficult for future administrations to revive Schedule F. Read more.
By Dan Gephart, October 16, 2023
Sen. Joni Ernst is clearly not a fan of remote work. She recently accused Federal teleworkers of “fraud.” Dig beyond the headline and you’ll see many of Ernst’s claims were based on outdated reports. But she may have been onto something when she asked how many Feds were still getting location-based pay and Washington, D.C., wages while teleworking from elsewhere.
We now know of at least one remote worker whose actions fit that description. And while those actions were not outright fraudulent, they did show a lack of candor, according to a recent initial decision by a Merit Systems Protection Board administrative judge (AJ). In Atterole v. VA, PH-0714-23-0184-I-1 (Sept. 7, 2023)(ID), the Veterans Benefits Administration removed the appellant for failure to follow the agency’s telework policy and lack of candor.
The appellant’s duty station was Baltimore. In the early days of the pandemic, she (like most of her Federal colleagues) was granted 100 percent telework. In December 2020, citing the deaths of her mother and brother-in-law, she requested to work from Port Charlotte, Fla. She said she’d work in Florida from Jan. 4 through March 4, 2021, and return sooner if needed.
The VA Telework policy did not require employees to change their duty station when they are working outside of their geographic region for fewer than six months and their absence is related to medical or other personal reasons. However, the employee was still working and living in Florida seven months later.
She failed to provide a Baltimore address to leadership and didn’t update her telework agreement – violations of agency policy.
Meanwhile, the VBA, concerned about allegations that employees were living in states other than their duty station of record and improperly receiving locality pay, appointed an investigatory board. And the employee’s sworn testimony before that board made matters worse.
At first, the appellant invoked her Fifth Amendment right, then stated that she had “permission to be in a different state but that’s all I’m going to say on the matter.” She also told investigators that “there was no expiration, [that she was] waiting on stuff to handle some personal matters …,” before testifying that other people on the staff were working from different locations than their geographical region. When asked to identify those people, she admitted that she knew of no one else beyond herself.
The AJ noted that while lack of candor doesn’t require intent to deceive, an “element of deception must be demonstrated,” and, in this case, the appellant knowingly gave “evasive and incomplete answers … with the intent to mislead the agency.”
The employee countered that the agency failed to reasonably accommodate her disability and retaliated against her for that activity. Her request to work from home 100 percent of the time was denied. However, the agency granted her numerous accommodations including a light above her desk, a space heater, stand-up desk, ergonomic chair, designated parking space and, in the event her office temperature couldn’t be regulated, the option to work from home temporarily. When the pandemic hit, she was granted 100 percent telework.
The AJ found the employee’s “vague assertions” failed to show by a preponderance of evidence that the EEO activity was either a motivating factor in or a but-for cause of her removal. The AJ concluded that the deciding official properly considered the relevant Douglas factors and found removal to be an appropriate and reasonable penalty. Gephart@FELTG.com
In recent years, employees have been more open about their faith in the workplace, much of this trend fueled by a number of religious-themed Supreme Court decisions. We’re taking a deeper look.
By Dan Gephart, September 11, 2023
The overworn idiom about the road to a certain scorching and undesirable place (no, I’m not talking my former state of residence, Florida) being “paved with good intentions” applies to the Rehabilitation Act. Just replace the H, the E, and both hockey sticks with an even spookier term — compensatory damages.
In Complainant v. GSA, EEOC Appeal No. 0120083575 (2009), that amounted to $3,000.
The lesson of Complainant v. GSA is this: When it comes to medical records or any information about an employee’s medical condition, you must remember the information is confidential. It should not be shared except in limited prescribed circumstances – and good intentions is not one of those circumstances.
The employee, who had multiple disabilities, had moved between jobs while working for the agency over a decade. When one job ended due to lack of work, the employee was transferred to a warehouse facility. Instead of reporting to the new workplace location, she applied for the agency’s voluntary leave program.
Her application contained a certification from her doctor stating that she suffered from “panic disorder without agoraphobia, adjustment disorder unspecified, and occupational problems.” The application also noted that the complainant had a negative sick leave balance of 231.7 hours and had used 240 hours of advanced sick leave.
The employee’s request for voluntary leave was approved.
Everyone is happy. Great solution. End of story, right? Umm, not so fast.
While soliciting voluntary leave donations for the employee, her supervisor emailed coworkers and happened to mention the employee suffered from PTSD/anxiety disorder “with” agoraphobia.
As a result, the employee experienced a drastic increase in insomnia, anxiety, stress, major depression, emotional distress, shame, loss of self-esteem, and radical weight fluctuations. It’s more powerful in her own words:
I was at least able to hide my mental conditions before my diagnosis was publicly released. After my diagnosis was released, I suffered nausea and pain in my stomach for several weeks. My head hurt me constantly. I was too depressed and ashamed to leave my home unless it was for something that was absolutely necessary such as to buy food or other necessities. I tried to hide when I was in public for fear of running into someone that saw the email. The subject e-mail was even forwarded outside of the agency.
There was not a widespread email in Becki P. v. Dep’t of Transportation, EEOC No. 0720180004 (2018). Nor was there any mention of a specific disability. Yet, the results were similar.
A supervisor had a heated discussion with an employee. After the employee left, the supervisor tried to explain the employee’s behavior to a contract employee who had witnessed it. The supervisor told the contractor the employee is “on medication.”
This, FELTG Nation, is a per se violation of the Rehabilitation Act.
Once again, the disclosure caused distress for the employee with a disability. In the employee’s words:
It became known around the office that I was on mental medication and my symptoms-psychological and physical-worsened. I felt greatly embarrassed and I was deprived of my dignity. I felt even greater distress and sadness, fell into a deeper depression, and became more withdrawn.
The AJ awarded the employee $1,000. Upon review, the commission determined an award of $2,000 was more consistent with awards in similar cases.
It’s important to note that there were multiple claims in each of these cases, and yet the only finding of discrimination in both was for the inappropriate disclosure of medical information.
Join us next week (Sept. 18-22) for Absence, Leave Abuse & Medical Issues Week where leave, medical records, confidentiality, and more will be discussed. Click here for the day-by-day description and register here for one day, all five days, or anything in between. Gephart@FELTG.com
An agency should not make a decision on a reasonable accommodation request until it determines whether the employee is “qualified,” and that step can’t be completed until the agency has identified the essential functions of the job at issue. Read more.
By Dan Gephart, August 14, 2023
The Equal Employment Opportunity Commission published its Notice of Proposed Rulemaking to implement the Pregnant Workers Fairness Act last week. Members of the public wishing to comment now have approximately 55 days to do so.
The Pregnant Workers Fairness Act (PWFA) has generally flown under the radar. If you haven’t yet paid attention, now might be the time. The EEOC is already accepting charges under PWFA, which requires employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”
Does the act create a new EEO category? How do pregnancy protections under the PWFA differ from those under Title VII and the Americans with Disabilities Act? What are the common effective accommodations for pregnant employees? If you want answers to these questions, register now for FELTG Instructor and Attorney at Law Katherine Atkinson’s upcoming two-hour virtual training class Everything You Need to Know About the Pregnant Workers Fairness Act on Sept. 14.
In the meantime, here are a few points to remember:
- Do not tie an individual’s job performance or pay to their history of pregnancy. This seems kind of obvious now, right? But back in 2008, an air traffic controller was denied a pay increase for the previous performance year. How do we know her maternity was the reason? Well, her manager said the quiet part out loud. “Just keep doing what you’re doing and I’ll see what I can do for you next year,” the manager said, “unless you plan on taking maternity leave again. You don’t have something you need to tell me, do you?” Complainant v. Fox, EEOC App. No. 0120122370 (Oct. 24, 2014)
- It’s not your role to “protect” a pregnant employee. A desk officer was selected for a new position, which was contingent on her completing a two-week training session. Per the agency, which cited “team camaraderie,” the training needed to be completed during one two-week stretch. As it got closer to the training, the agency made the decision to not allow the employee to attend the training because her due date fell “within the final two weeks.” The employee requested accommodations that would allow her to attend the training. The agency admitted that the employee’s pregnancy played a role in its decision, and that supervisors were concerned about her driving and taking the stairs. Well-meaning discrimination is still illegal discrimination. Roxane C. v. DoD, EEOC App. No. 0120142863 (Jul. 19, 2016)
- Treat individuals who are pregnant (or have pregnancy-related conditions) the same as others on the basis of their ability or inability to work. A letter carrier on a one-year appointment had an excellent attendance record, until her high-risk pregnancy forced her to miss work due to pre-natal appointments and medical incapacitation. According to the letter carrier, one supervisor told her she should have an abortion unless she wanted to be fired.
The letter carrier was not reappointed after her term expired. The agency cited her attendance issues as a reason. She was the only transitional employee not reappointed because of attendance. Others were not reappointed because of poor work performance or instances of bad driving. Meanwhile, an employee who similarly experienced attendance difficulties because of a foot injury was reappointed. The EEOC ordered the agency to immediately reinstate the letter carrier, and provide her with appropriate back pay, benefits, and seniority. Robertson v. USPS, EEOC App. No. 01956011 (Jan. 5, 1998).
- Know all of the applicable laws. The cases detailed above were violations of Title VII, which protects employees from discrimination based on pregnancy, childbirth, and related medical conditions. The PWFA requires employers to provide reasonable accommodation, just as the Americans With Disabilities Act does for employees with disabilities. While pregnancy is not a disability under the ADA, some pregnancy-related conditions may be. There is also the Family and Medical Leave Act, which provides covered employees with unpaid, job-protected leave for certain family and medical reasons; and the new PUMP Act, enforced by the Department of Labor, which broadens workplace protections for employees to express breast milk at work. Gephart@FELTG.com
